In my various mediation training classes, we have discussed the pros and cons of an apology; whether it should be given and if so, under what circumstances.
From my own life experience, I know that apologies are important but I did not realize what a real difference they can make or how powerful they can be until today.
Today, I mediated an emotionally difficult case. The plaintiff, of baby boomer age, rented an apartment in a secure building. The owner of the building employed a resident manager and handyman on the premises. According to plaintiff, although the handyman was often drunk at work, the manager did nothing about it and, in fact, often shared cocktails with him on her patio.
One evening while plaintiff was walking to the apartment of one of her friends in the building, the handyman accosted her and began groping. Only with the assistance of one of her neighbors was plaintiff able to escape out of the corner into which the handyman had pinned her.
This event traumatized plaintiff for which she sought counseling. While the counseling helped a great deal, it was obvious during the mediation that the emotional scars still existed.
Prior to the mediation, I was inclined not to hold a joint session. However, just prior to the start of mediation, I discussed this issue with defense counsel and the defendant’s representative. They stated that for purposes of the mediation, they were not contesting the events or otherwise taking issue in any way with what had occurred. I suggested a joint session so that they could make this acknowledgment directly to plaintiff.
So with plaintiff and her counsel’s permission, we held a short joint session. We did not discuss the event itself but simply the parties’ perspectives on the matter.
After plaintiff’s counsel finished, defense counsel spoke for a few moments noting that the issues were not being contested for purposes of the mediation. Then the representative of the landlord spoke. The first words he said were directed to plaintiff: “I apologize for what happened to you.” He continued, and the reactions of both plaintiff and her counsel were visible: their hardened demeanors softened considerably. Someone had not only acknowledged that the event had happened but had apologized for it.
With this acknowledgement, the sole issue remaining was the amount of damages. After several rounds of negotiation, the parties agreed on a sum, and drafted and signed a settlement agreement. It was over. It did not take very long at all to resolve this matter.
Afterward, plaintiff’s counsel told me that when she and her client walked in to the mediation, they had planned to take a hard line, ask for a large sum of money and not negotiate much below their initial demand. But, then, the landlord’s representative apologized. That apology changed everything. Up until the mediation, no one from the landlord, not even the resident manager (who was well aware of the event at the time it occurred) had acknowledged to her that the event had even occurred much less asked her if she was okay. Rather, the resident manager ignored the whole thing as if it had never occurred. The apology was the first acknowledgment that something bad, indeed, had happened to plaintiff which should never have happened. It thus became the most important part of the mediation. Because of that apology, plaintiff was willing to settle and in fact, settled for a much smaller sum of money than she had in mind when she walked into the mediation.
An apology: it can be quite powerful!
Perhaps this is why, within recent years, thirty five (35) states and the District of Columbia have enacted statutes excluding expressions of sympathy after accidents as proof of liability while five (5) states have passed statutes requiring mandatory notification of adverse events to patients. These statutes were enacted mainly with medical malpractice in mind: to assist the medical community in its efforts to deter or reduce litigation and the amounts paid in settlement by being able to express sympathy without such expressions being considered admissions of liability. These statutes allow the medical professional to be human without exacting a large price for showing that humanity.
As Patricia A. Bronte explains in her article entitled ‘Reviving The Lost Art of Apology” published by the Section of Litigation of the American Bar Association:
“Although the apology statutes were enacted within a relatively short period, there are significant differences among them. All of them provide evidentiary protection for simple apologies (“I’m sorry you were hurt”); unfortunately, one study has shown this type of apology to be the least effective, and possibly counterproductive, in reducing litigation and settlement amounts. Five states have apology statutes that also protect partial apologies (“I made a mistake and I’m sorry”), but only Arizona’s statute explicitly protects full apologies (“I’m sorry, it was my fault you were hurt”). Statutes in 13 states clearly protect simple apologies and may also cover broader apologies. “
One example is the California statute. California Evidence Code Section 1160 (california-evidence-code-section-1160) provides, in part, that “…portion of statements, writings, or benevolent gestures expressing sympathy or a general sense of benevolence relating to the pain, suffering or death of a person involved in an accident ….shall be inadmissible… A statement of fault , however…. shall not be inadmissible….”
So, apologies are powerful and can go a long way to avoiding litigation altogether or greatly reducing the settlements often exacted to conclude it.
The next time are in a dispute, rather than letting it get out of hand, think about simply saying” I apologize.”
. . .Just something to think about.
If you have not done so already, do not forget to sign up for the Southern California Mediation Association’s 2009 SCMA Conference I am in charge of it and hope to see y’all there!
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